Donald Dinnie, Norton Rose Fulbright
In this judgment, the court held that the two disclaimer notices displayed at the defendant’s premises did not exclude its liability for gross negligence.
The plaintiff was a visitor to the defendant’s holiday resort and sustained injury when she fell into a hole when seeking shelter at a time when there was a sudden cloudburst accompanied by light hail. The court accepted the plaintiff’s evidence that she was not aware of the presence of the hole and could not see it when seeking cover at the time of the cloudburst.
On the facts the court found that the defendant was grossly negligent in digging a hole or allowing it to be left open without cordoning it off properly and failing to provide any warning signs of the danger presented by the hole. The hole was used as an unprotected garbage pit, and left open for, at least, four days prior to the incident.
The defendant relied on two disclaimer notices.
The first notice board was on a curve of the road at the entry to the resort and visitors were not directed to stop and read the notice before proceeding. Visitors driving past the notice board had a split second to read the contents if they were actually aware of the notice board. The court said that unless the driver of the vehicle at the entrance to the resort came to a stationary position right in front of the notice board it would not be possible to read the contents in order to appreciate that it had something to do with a visit to the resort. The court held that the defendant did not take reasonably efficient steps to notify the plaintiff of the terms of that disclaimer and that there was no actual nor quasi-mutual assent proven in respect of that disclaimer notice.
The second disclaimer notice was at a second set of gates where visitors enter the resort and have to stop in order to pay entrance fees. The notice board was erected to the left hand side of the vehicles on the way to the resort. The plaintiff had sufficient time to read the second disclaimer which was prominently displayed. Any ordinary alert visitor to the resort would have seen it and been able to read it. The court was satisfied that actual or alternatively quasi-mutual assent was proved in respect of the second disclaimer.
The court found that the wording on the second disclaimer was clear and unambiguous and that it was properly displayed at the time. The defendant took appropriate steps to notify prospective visitors of the conditions applicable to them when entering the resort.
The plaintiff argued that it was unconstitutional for the defendant rely on a notice exempting the defendant from liability or that reliance on the notice was contrary to public policy.
The plaintiff referred to Koen v Pretoria Central Investments (Pty) Limited trading as Pretoria Parkade http://www.saflii.org/za/cases/ZAGPPHC/2018/113.pdf
The court declined to follow Koen saying it was not good law insofar as it held that all disclaimers are “bad in law and can therefore not pass constitutional muster’.
The court also declined to follow the judgment in Naidoo v Birchwood Hotel http://www.saflii.org/za/cases/ZAGPPHC/2018/113.pdf and disagreed with that judge’s view that exemption clauses will not pass constitutional muster, having reference to, for example, Barkhuizen v Napier http://www.saflii.org/za/cases/ZACC/2007/5.pdf. Where reliance is placed on a disclaimer it must be scrutinised to ensure that the values enshrined in the constitution are not undermined. But that the legislature accepted, as provided for in section 49 of the Consumer Protection Act, that a supplier or service provider may limit its risk or liability subject to the provisions enumerated in section 49 bearing in mind public policy considerations.
The court pointed out however that on the facts the second disclaimer notice did not expressly seek an indemnity against gross negligence or recklessness of its directors and employees. The court said that such a clause in a disclaimer would be contrary to public policy and unenforceable because the disclaimer is so wide in ambit that the defendant would seek to be indemnified in respect of all events, imaginable or unimaginable when its directors and employees were guilty of direct or indirect intent, , recklessness or gross negligence in causing the injury or damage.
And on the basis that disclaimers must be interpreted restrictively, the court said that the Supreme Court of Appeal in Stella Tingas v Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas 2003 (2) SA 473 (SCA) assumed without deciding that the exclusion applied in cases of gross negligence.
The court concluded that the disclaimer notice did not apply because the defendant was grossly negligent.
The court’s attention was apparently not drawn to and the court did not remark on the fact that section 51 of the Consumer Protection Act does not permit a disclaimer of liability for gross negligence. The plaintiff fell within the protections of the Consumer Protection Act and the notice could not lawfully apply once the finding of gross negligence was made.
First published by: Financial Institutions Legal Snapshot
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